NEW YORK (AP)  Ex-New York Assembly Speaker Sheldon Silver can ask the U.S. Supreme Court to review his case rather than go straight to a retrial after appeals judges cleared the way Thursday.

The 2nd U.S. Circuit Court of Appeals said the Democrat can ask the high court to look at his case after lawyers for the longtime state power broker argued that it was better to do it now than after a retrial.

A three-judge panel of the appeals court tossed out his 2015 public corruption conviction in July, citing a recent Supreme Court decision that reversed the public corruption conviction of Virginia Republican ex-Gov. Bob McDonnell. But it also said there was sufficient evidence to conduct a retrial. Prosecutors vowed to appeal, a promise they repeated on Thursday.

“We still plan to retry this case as soon as possible,” said Nicholas Biase, a spokesman for prosecutors.

In court papers, prosecutors had opposed Silver’s request for the 2nd Circuit to suspend the effect of its decision long enough for a Supreme Court review, saying the move was a “delay tactic.”

“Silver’s retrial is inevitable, regardless of the outcome of any one of his claims in the Supreme Court,” wrote Assistant U.S. Attorney Tatiana Martins. “There is no good cause for delay.”

She also noted that one of the key witnesses against Silver is over age 80 and said Silver should not be allowed to use the remote chance the Supreme Court would take up the case to delay a retrial for months and gain a strategic advantage.

The 73-year-old Silver was convicted in a $5 million scheme and was sentenced to 12 years in prison. When the 2nd Circuit tossed out the conviction, it described how instructions on the law by the judge to the jury were correct by longtime legal precedent in New York, but was inconsistent with how the Supreme Court narrowed the definition of public corruption in its McDonnell decision.

Steven Molo and Joel Cohen, lawyers for Silver, praised the 2nd Circuit in a statement Thursday.

“The court recognized the significance of the issues we will be asking the Supreme Court to review. It halted the trial court proceedings to allow us to do that,” they said.